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U.S.-Canada Border Security Agreement

January 9, 2012

After waiting over 10 years, a long-delayed bilateral security perimeter agreement is supposed to mitigate border delays and security fiascos at border crossings between Canada and the United States. Instead, Canadian critics of the Perimeter Security and Economic Competitiveness Action Plan announced last month in Washington DC contend that their personal data will be shared with U.S. officials and that Washington will dictate the harmonization of security rules and regulations.

At their December meeting, Canadian Prime Minister Stephen Harper and U.S. President Barack Obama signed two action plans—one on security and economic competitiveness, the other on regulatory cooperation—under a “Beyond the Border” umbrella agreement designed to facilitate two-way trade and combat terrorism. The move was widely celebrated by Canadian manufacturers who complained about long delays at the border in the heightened, post-9/11 discussion of national security. Those delays have crippled trade with the U.S., Canada’s largest trading partner.

However, pressed by time and because of jurisdictional entanglements, both countries had to settle for a less ambitious accord. A global border deal is likely three years away. In the meantime, numerous pilot projects will test the will, patience and feasibility of integrating policies and procedures to speed the entry of goods, services and people at border crossings.

There are complications. The two legal systems don’t mesh perfectly; their approaches and priorities are different. For Canadians, a border deal is mostly for economic reasons, says Prof. Christian Leuprecht, an expert at Queen’s University in Kingston, Ontario. For Americans, it’s about security.

“The devil is in the details,” he says. “For the U.S., there are so many other priorities that it’s surely the Canadians who pushed for that agreement and pushed for the announcement of the agreement.”

Indeed, Harper has hailed the perimeter security agreement as a bold and historic initiative; as he put it, it was the most significant cooperation project since the signing of NAFTA. Nearly $1 million in goods and services cross the Canada-U.S. border every minute—as do 300,000 people daily. A border deal with the U.S. was one of Harper’s many election promises during the spring 2011 election campaign.

For Harper, “Beyond the Border” is welcome news after tensions arose between Ottawa and Washington over Obama’s decision to delay approval of the Keystone XL Pipeline project until after the 2012 presidential elections, citing environmental concerns. The major project would bring crude from Alberta’s oil sands to the U.S. Gulf coast, implicating thousands of Canadian jobs.

Obama, who described his ties to Harper as “a close personal friendship,” said Canada was “key to achieving my goal of doubling American exports and putting folks back to work.”

By all means, the intense bureaucratic apparatus—including a high number of departments—involved with the deal has made it more difficult to get a comprehensive border agreement off the ground.

One headache is the coordination of personal data. In Canada, privacy laws prohibit personal information from being used for other means than for the purpose for which it was collected. For example, information collected at the border from a Canadian traveller cannot be used for tax evasion purposes. But under the USA PATRIOT Act, American officials have much more latitude about the way they can collect and use personal information, says Leuprecht.

A cornerstone of the new deal is an entry-exit system. Land visitors to Canada are already registered upon arrival; but starting in September 2012, information will be gathered when they leave Canada. The U.S. will do the same. In 2014, visitors and foreigners that seek refugee status in Canada and require a visa will be scrutinized and fingerprinted. Those fingerprints will be shared with U.S. authorities.

For Canadians, privacy issues evoke the horrific Maher Arar incident. In 2002, Arar, a Syrian-born Canadian citizen, was detained by U.S. authorities during a stopover in New York and sent to Syria where he was tortured based on information provided by the RCMP (Royal Canadian Mounted Police). A judicial inquiry found that Canadian authorities had mislabelled Arar an Islamic extremist with possible ties to al-Qaeda. In 2007, Prime Minister Harper apologized for the ordeal and awarded Arar $10.5 million in a legal settlement.

Another headache is the implementation of the Shiprider Program that is currently being rolled out as a premier pilot program. Under this program, authorities are trained and allowed to enforce certain aspects of the law in the other country’s jurisdiction. For instance, Canadian federal officers will be able to operate on a U.S. coast guard vessel, pursue vessels from American into Canadian waters, board those vessels, and conduct arrests.

“Chasing boats and arresting people on waters, we’re unlikely to have a big shoot-out at sea,” says Leuprecht. But it becomes much more problematic if there’s a shoot-out on land, he adds. “Under whose jurisdiction do we conduct an investigation about whether the shooting is justified? If it turns out that the shooting was unjustified and the individual sues, under what legislative jurisdiction and provisions does that individual have recourse?”

The U.S. Congress has already passed legislation allowing this joint effort at sea. But after previously renewing similar legislation on a yearly basis in Canada, the Canadian legislation now has been withdrawn because of all these wrinkles.

New Democrat Member of Parliament (MP) Brian Masse—who represents the Ontario border city of Windsor—is worried about the kind of biometric information Canadians will have to share to cross the U.S. border. He says the deal is one-sided in favor of the United States.

In an interview for this post, MP Masse concludes that Canada has “boxed itself in” by allowing the United States to get away with the argument that the U.S. northern border is porous. “We have a fairly sophisticated and intelligent border,” says Masse. “We don’t have thousands of people—like the southern border of the United States—coming through every single every day.”

The militarization of the border, he says, “feeds into this notion that’s it’s the Wild West on the Canada-U.S. border.”

Scanners in airports to detect explosives will be installed in Canadian airports. To avoid hold-ups at the border, there are also measures to pre-clear and pre-inspect U.S.-bound goods from Canada.

These measures, while they may have Canadian businesspeople grinning, are worrying for many other Canadians.

Huguette Young is an AQ Online contributing blogger based in Ottawa, Canada.

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